Davis v. Brigman Et Ux
| Decision Date | 24 May 1933 |
| Docket Number | NO. 623.,623. |
| Citation | 169 S.E. 421,204 N. C. 680 |
| Parties | DAVIS et al. v. BRIGMAN et ux. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Madison County; Clement, Judge.
Action by Hobart Davis and others against Wayne Brigman and wife. From the judgment, plaintiffs appeal.
Affirmed.
George M. Pritchard, of Asheville, for appellants.
John A. Hendricks, of Marshall, for appellees.
When the complaint and answer were read the defendants made a motion to dismiss the action; the motion was. allowed, and the plaintiffs excepted and appealed. Whether the judgment is correct is dependent chiefly upon the allegations in the complaint.
On the 29th of June, 1931, or prior thereto, the county of Madison instituted an action against the plaintiffs to foreclose a tax certificate issued to the county pursuant to a sale of the land in controversy. No answer was tiled, and an interlocutory order was made in which a commissioner was appointed to sell the land. Disston Silver because the highest bidder and assigned his bid to the defendant Wayne Brigman. Afterwards a final decree was made, and the commissioner, by direction of the court, executed and delivered a deed in fee simple to the assignee.
It is alleged in the complaint that the summons in the foreclosure proceedings purports to have been issued by the clerk of the superior court and to have been served on the plaintiffs, but that in fact it was never served, and that the return of the officer is incorrect. It is alleged, also, that the lands were not properly listed for taxation and were insufficiently described.
The defendant's motion to dismiss the action was based upon two grounds: (1) The plaintiffs brought an independent action to set aside a judgment taken before the superior court for want of an answer; (2) the plaintiffs' only remedy was by motion in the cause.
This action cannot be treated as a motion in the foreclosure proceedings for the reason that all the parties to the foreclosure are not parties to the present action. The remaining question is whether the relief sought by the plaintiffs can be administered in an independent action. The plaintiffs claim that the relief sought is the removal of a cloud on the title of their land; but in order to remove the alleged cloud it is necessary to vacate the judgment rendered when the tax certificate was foreclosed. This court has repeatedly held that when it appears from the officer's return that a summons has been served as required by law, when in fact it has not been served, the remedy Is a motion in the cause to set aside the judgment and not an independent action. In...
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...of necessary parties the court could not treat this action as a motion in the cause. Buncombe County v. Oenland, supra; Davis v. Brigman, 204 N.C. 680, 169 S.E. 421. The record discloses notice to creditors published in Affirmed. PARKER, J., took no part in the consideration or decision of ......
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